March 13, 1999 − by CIR − in News − Comments Off on Court to Congress: You can’t regulate everything

By Stuart Taylor, Jr

The National Journal, March 13, 1999

A March 5 federal appeals court ruling has propelled toward the Supreme Court a dispute that could have a major impact on the relative powers of Congress, the states, and the high court itself.

The immediate question is whether the 7-4 appellate decision was correct in striking down a provision of the Violence Against Women Act of 1994 (VAWA) authorizing alleged victims of “crimes of violence motivated by gender” to sue their alleged victimizers in federal court. It was designed to help harmed women, ranging from abused wives to rape victims.

The more fundamental question is whether Congress enjoys a virtually unlimited power to regulate or punish private, noncommercial conduct traditionally governed by state law, as the four dissenters implied, or, contrarily, is subject to constitutional limits rooted in federalism and enforced by the courts, as the majority inferred from recent Supreme Court precedents.

The case is also a striking example of how politicized justice in America has become. The U.S. Court of Appeals for the 4th Circuit (in Richmond, Va.) decided it by a straight party-line vote: All seven judges voting to strike down the statute were named by Republican Presidents; the four dissenters, by Democrats.

On still another level, the facts dramatize either the need to provide federal remedies for women victimized by male violence or–depending on whom you believe in this she-said, he-said dispute–the dangers of presuming guilt when women (especially white women) accuse men (especially black men) of rape (especially in the Old South).

The plaintiff (Christy Brzonkala) claims that she was raped and verbally abused by two black football players (Antonio Morrison and James Crawford) in September 1994, when all three were students at Virginia Polytechnic University.

After waiting six months, Brzonkala complained to campus authorities (not to police). Morrison admitted to having had sex with Brzonkala–after she had visited his dorm room, at 2 a.m., on her way home from a drinking party–but said it was consensual. Crawford denied any sexual contact. Virginia Tech eventually cleared Crawford and disciplined Morrison mildly for abusive language (not rape). A state grand jury later found insufficient evidence to charge either man with any crime.

Brzonkala’s federal lawsuit seeks millions from both men for rape, under VAWA. She also sued Virginia Tech for $8.7 million for mishandling the matter and showing favoritism to football players. The 4th Circuit sent the latter claim–under a different, 1972, statute–back to U.S. District Court for further proceedings.

That cleared the decks for the question that now seems headed for the Supreme Court: Even if Brzonkala was raped, can Congress authorize women to sue men for gender-motivated violence?

“No less for judges than for politicians is the temptation to affirm any statute so decorously titled” as the Violence Against Women Act, Judge J. Michael Luttig acknowledged in his 129-page opinion for the 4th Circuit. Luttig complained that “we live in a time when the lines between law and politics have been purposefully blurred to serve the ends of the latter.”

But he stressed that the Framers of the Constitution, “believing that government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several states and to ourselves.”

Those words might have sounded anachronistic a few years ago. Under the Supreme Court’s jurisprudence over most of the past six decades, “states’ rights” has seemed a moribund concept, and the power of Congress to regulate private conduct was almost unchallenged.

In particular, Congress’s power under the Constitution to regulate interstate commerce was deemed to reach all manner of activities that could be said to affect commerce in some way. Of course, virtually every human activity can be said to so affect commerce.

But Congress’s reach began to exceed its grasp in April 1995, when the Supreme Court’s decision in United States vs. Lopez breathed new life into federalism-based restraints on Congress by finding for the first time since 1935 that an act of Congress–one making it a federal crime to have a gun within 1,000 feet of a school–was unwarranted by the commerce power.

Chief Justice William H. Rehnquist’s opinion for the 5-4 majority rejected language in earlier decisions that had seemed so deferential to Congress as almost “to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the states.”

Since Lopez, judges and lawyers have debated whether it would be the first of a succession of decisions striking down congressional incursions into the states’ domain, or rather an isolated and largely futile effort to hold back the tides of centralized power and political modernity.

The answer could come from the high court’s handling of the expected appeals by Brzonkala and (perhaps) the Justice Department, both of which have defended VAWA mainly as a valid exercise of the commerce power.

As Judge Luttig stressed, the right to sue created by VAWA seems vulnerable to some of the same arguments that doomed the guns-near-schools law. In Lopez, Rehnquist stressed that that having a gun near a school “is in no sense an economic activity” and that the guns-near-schools statute “neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce.”

Rehnquist also stressed that even “economic” activities cannot be regulated by Congress unless they have “substantial” effects on commerce. He rejected as of little relevance the dissenters’ demonstration that gun violence in or near schools does affect commerce, in that it threatens education, which is vital to prosperity, which fuels commerce.

Much the same can be said of VAWA: Rapes and other violent crimes against women are in no sense economic or commercial activities; they are individually unconnected to interstate commerce; and while they affect interstate commerce in the aggregate–by driving up medical costs and deterring some women from traveling and holding jobs–these effects are attenuated.

In addition, Luttig notes, regulation of domestic relations and punishment of (intrastate) violent crimes have traditionally been preserves of state law. And while VAWA’s premise is that state proceedings are often infected by sexism, the statute opens federal courts to all alleged victims of gender-motivated violence, including those who have adequate state remedies.

Still, the Lopez decision seems a bit less sweeping than Judge Luttig suggests. He concluded that the commerce power cannot be used to regulate any noncommercial activities that do not involve crossing state lines. Rehnquist’s opinion is more ambiguous that that. It probably had to be, given the cautious ambivalence expressed in a concurrence by two of the majority justices, Anthony M. Kennedy and Sandra Day O’Connor.

As Judge Diana Gribbon Motz stressed in her 53-page opinion for the four dissenters in Brzonkala, most lower courts have not read Lopez so broadly; Rehnquist’s opinion stopped short of overruling earlier precedents; and he reaffirmed that the high court should defer to Congress if it has a “rational basis” for finding that specified conduct–at least, if it is “economic” conduct–substantially affects commerce.

In such matters, Judge Motz argued, “the unelected federal judiciary” should not “seek to defend the states and the people against themselves,” but rather should defer to Congress, “which is constitutionally designed to respond most sensitively to the will of the people.”

Still, Judge Motz offered no very satisfactory answer to an observation by Rehnquist in Lopez that also seems relevant in Brzonkala: “If we were to accept the Government’s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.” Indeed, if the commerce power is broad enough to justify opening federal courts to victims of domestic violence, it’s hard to see why Congress may not take control over all of domestic relations.

What might the Supreme Court do? It’s hard to call. The four Lopez dissenters would surely uphold VAWA, and they might get another vote (or two) from Kennedy or O’Connor. She will be especially interesting to watch, given her solicitude for states’ rights and women’s rights. Meanwhile, we have Judge Motz accusing the 4th Circuit majority of judicial activism, and Judge Luttig accusing the dissent of “judicial abdication.”

In my view, this is a case on which reasonable judges disagree. Mostly, it seems, along party lines.